D.N.J.: There were material misrepresentations in the affidavit for a vehicle SW, but they are mooted by the automobile exception

The validity of the search warrant for defendant’s car was irrelevant where the automobile exception applied. Therefore, defendant’s Franks challenge is moot despite the fact there were material misrepresentations in the affidavit because the officers were trying to keep a wiretap under wraps. United States v. Wimbush, 2020 U.S. Dist. LEXIS 65913 (D. N.J. Apr. 15, 2020):

Both of the statements regarding the interaction with the confidential informant and the misrepresentation of law enforcement’s purpose are affirmative acts of deliberate deception. The failure to apprise a reviewing judge of all the material facts relevant to the law enforcement investigation, particularly in the context of hearsay information obtained from confidential informants, and attesting to the reliability of informants, is unjustifiable. Time constraints and pressures often arise during a criminal investigation, which is why law enforcement is not held to a standard of absolute, exacting accuracy; but, there is no excuse for an officer, swearing on a search warrant affidavit, to not make all reasonable attempts to ensure the accuracy and completeness of the information provided to the reviewing judge. Absent candor and diligence on the part of the affiant, the judge reviewing the warrant application cannot perform his or her role in safeguarding the warrant process. See Dempsey v. Bucknell Univ., 834 F.3d 457, 469 (3d Cir. 2016) (explaining that “[i]f, however, the officer does not provide the neutral magistrate with an accurate affidavit of probable cause, the protection afforded by the magistrate’s review is lost; the magistrate will be unable to assess the circumstances for probable cause because he will not know what those circumstances actually are”). Unlike the other misstatements and omissions identified by Defendants, these particular misstatements are reflective of more than mere carelessness or negligence on the part of the drafting officer. They are the product of wholly inappropriate police practices, which are tantamount to lack of candor to the Court.

The above-identified misstatements in the search warrant were not the only errors which occurred during the search and arrest of Defendants. In many respects, law enforcement’s investigation was marked by easily avoidable errors and carelessness, which obligated this Court to heavily scrutinize the officers’ conduct, and engage in a searching analysis to be assured of its constitutionality. Aspects of the investigation, such as the discrepancy between Laurel Place and Laurel Avenue and Detective Cox’s failure to document the September 4, 2018 contact with the confidential informant, are indicative of haphazard recordkeeping and neglect. While these errors were not sufficient to find that Defendants’ Fourth Amendment rights were violated, they nonetheless gave the Court pause and reason to question the officers’ credibility. Such practices complicate the judiciary’s role as the protector of individual liberties and may interfere with the Court’s ability to assess the proprietary of law enforcement’s conduct. Nonetheless, despite these errors and the significant misstatements in the affidavit, I have found that a search warrant was not required, and an independent basis existed for the search based upon the automobile exception and the positive canine sniff alerting to the odor of narcotics. Therefore, the evidence seized in connection with the motor vehicle stop on September 6, 2018, including the drugs seized during the patdown search of West, the items found in the car during the stop, and the items found in the trap compartment of the Volkswagen Passat, are not suppressed.

This entry was posted in Automobile exception, Franks doctrine. Bookmark the permalink.

Comments are closed.